National Police Service under the New Constitution

Open. Accountable. Responsible

Contents

Introduction

The Police Service will maintain law and order throughout the republic. However, under the Constitution of Kenya 2010, the Police will cede its function of prosecution in the courts to the office of the Director of Public Prosecutions.

The National Police Service consists of two arms namely, the Kenya Police Service and the Administrative Police Service. It is headed by an Inspector General, and two Deputy Inspector-Generals over each of the two arms.

Introduction

As democracy, justice, and the rule of law begin to take root in Kenya, there is great public expectations for a reformed Kenya Police Force. This arm of law enforcement has frequently faced accusations of grave misconduct, ineffectiveness and impunity. Most public accounts accuse the Police of being corrupt and unhelpful whenever their services are required. Its officers have often been accused of "........ brutality, torture, assault, rape, triggerhappiness, illegitimate arrest, harassment, incivility, disregard for human rights, corruption and extortion, among other things" (Police Strategic Plan, 2003-2007).

Authority

Under the New Constitution the Kenya Police Force has been renamed the National Police Service and retained its mandate and jurisdiction as one arm of the three arms of national security, albeit with a new name to reflect its new servant (as opposed to master) role. Excerpts from Article 239under Chapter 14 - National Security, Part 1 - National Security Organs:

239. (1) The national security organs are— ....... (c) the National Police Service.

Oftentimes, the Police have been accused of being a law unto themselves. This is going to change. The Police Service will be under the supervision of the largely civilian National Defense Council:

239. (5) The national security organs are subordinate to civilian authority.

240. (3) The Council shall exercise supervisory control over national security organs and perform any other functions prescribed by national legislation.

County governments will rely on the Police Service for the maintenance of law and order in their jurisdiction. Excerpt from Part 4 - The National Police Service:

243. (3) The National Police Service is a national service and shall function throughout Kenya.

Nonetheless, it is incumbent upon the new Police Service to respect the units of devolution and seek to cooperate with county authorities. Else, it may well find itself an unwelcome guest if it does not first shed its old practices and attitudes, and if it fails to repair its tattered image.

The new Police Service must be seen to be an enabler of democratic ideals within the context of national security:

238. (2) The national security of Kenya shall be promoted and guaranteed in accordance with the following principles–– (a) national security is subject to the authority of this Constitution and Parliament; (b) national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms;

239. (2) The primary object of the national security organs and security system is to promote and guarantee national security in accordance with the principles mentioned in Article 238 (2).

The Police Service must be non-partisan in its enforcement of law and maintenance of public order; the Service must no longer allow itself to be a tool for any one's political or criminal agenda, or for oppression or repression of contrary thought:

239. (3) In performing their functions and exercising their powers, the national security organs and every member of the national security organs shall not— (a) act in a partisan manner; (b) further any interest of a political party or cause; or (c) prejudice a political interest or political cause that is legitimate under this Constitution.

243. (c) in performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya; ........

Articles 239 and 243 above achieve two main intentions: first, they provide an environment where the Police can work without fear or favour; and secondly, guarantee the liberty and security of every citizen and every community in Kenya - "Utumishi kwa Wote" or Service for All.

Any civilian office that exercises oversight authority over the Police Service is required by the New Constitution to give its directions only in writing to ensure professionalism and accountability in the work of the Police:

245. (5) Any direction given to the Inspector-General by the Cabinet secretary responsible for police services ...... or any direction given to the Inspector-General by the Director of Public Prosecutions ......., shall be in writing.

However in April 2015 following a deadly terror attack at Garissa University College in which more 147 people (mostly students) lost their lives, the then IGP almost contravened the law and the constitution he was sworn to protect when he went ahead to ask 10,000 recruits to report on the 12th April for training against a High Court order of 31st October 2014 that found that their recruitment (earlier conducted by the National Police Service Commission in June of 2014), was laden with corruption and related ills. Unable to stand up to an illegal order, the IGP was merely acting on a verbal instruction from the President:

Said the President in an address to the Nation on the 2nd of April 2015 - the day of the attack, "I further direct the Inspector-General of Police to take urgent steps and ensure that the 10,000 recruits, whose enrolment is pending, promptly report for training at the Kenya Police College, Kiganjo."

“I take full responsibility for this directive. We have suffered unnecessarily due to shortage of security personnel. Kenya badly needs additional officers, and I will not keep the nation waiting.”

However, the Constitution is clear on such or similar orders; Chapter 9 - The Executive, Part 1 - Principals and Structure of the National Executive:

135. A decision of the President in the performance of any function of the President under this Constitution shall be in writing and shall bear the seal and signature of the President.

By failing to provide evidence of the requisite written and signed order from the President to that effect, the IGP had no 'backing' to his order directed to the recruits. In any event, even if he had received such a written (illegal) order, the IGP would still have been in contravention of the law:

245. (2) The Inspector-General––(b) shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.

Roles and Functions

The details of the roles and functions of this national security organ are contained in the National Police Service Act, 2011 as enacted by Parliament in fulfillment of the Constitution:

239. (6) Parliament shall enact legislation to provide for the functions, organisation and administration of the national security organs.

As an organ of the state, the Police Service's primary duty will be to provide security to the individual and to the community.

238. (1) National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests.

As noted earlier, the Police have for a long time been viewed with mistrust and suspicion. It therefore comes as no surprise that the new expectation on the Police Service is that it is seen to be working to protect the Bill of Rights of the people of Kenya; its reforms must be geared towards this end. Excerpts from Article 244:

244. The National Police Service shall— (a) strive for the highest standards of professionalism and discipline among its members; (b) prevent corruption and promote and practice transparency and accountability; (c) comply with constitutional standards of human rights and fundamental freedoms; (d) train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and (e) foster and promote relationships with the broader society.

The police will no longer conduct prosecutions - that responsibility now falls under the Director of Public Prosecutions, DPP; their role in criminal justice has been limited to that of investigations. Chapter 9 - The Executive, Part 4 - Other Offices, Article 157:

157. (4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.

Article 157 also ensures that Police are accountable to the public (via the office of the DPP). In that regard, they must demonstrate a proactive and impartial mien at all times and especially when they may be inclined to act reluctantly in the conduct of an investigation or appear to cover up criminal conduct.

Structure and Composition

Joseph Kipchirchir Boinett, 2nd Inspector-General of the NPS

Although during the constitution making process there were repeated calls to scrap "Polisi wa Chief" (Kiswahili for the 'Chief's Police') who were known formally as the Administration Police, the new National Police Service retained this policing arm that had traditionally been under the direct control of the Provincial Administration, PA.

243. (1) There is established the National Police Service.(2) The National Police Service consists of— (a) the Kenya Police Service; and(b) the Administration Police Service.

The two Police Services however, will be under one command - that of an Inspector-General with two deputies. Excerpts from Article 245:

245. (1) There is established the office of the Inspector-General of the National Police Service.(3) The Kenya Police Service and the Administration Police Service shall each be headed by a Deputy Inspector-General .........

A new Inspector-General will be appointed every 4 years, perhaps a reflection of the urgent need to reform the Police by making frequent changes at the very top. Clause (6):

(6) The Inspector-General shall be appointed for a single four-year term, and is not eligible for re-appointment.

The first IG was appointed in December 2012 and was therefore to serve until December 2016. He left office two years early on the 2nd of December 2014 when he 'retired' after repeated and widespread calls for his removal following frequent massacres of scores of innocent people in the hands of Islamic terrorists in urban areas particularly in Nairobi and Mombasa, in Counties at the Coast, and in the north and north-eastern parts of the country; as well as killings in numerous deadly attacks and counter-attacks by ethnic bandits within the pastoralist northern Rift Valley Counties.

245. (2) The Inspector-General––(a) is appointed by the President with the approval of Parliament; .......

The National Police Service Commission may be allowed by future legislation to establish additional and autonomous Police Services; perhaps to contain new security threats such as terrorism and cyber crime as well as specialist units to tackle financial fraud and drug trafficking, etc:

247. Parliament may enact legislation establishing other police services under the supervision of the National Police Service and the command of the Inspector-General of the Service.

The new National Police Service must not only recruit fairly and professionally, it must do so within the New Constitution's framework of affirmative action to all the regions of Kenya. Its rank and file must reflect the face of Kenya:

238. ....... (d) recruitment by the national security organs shall reflect the diversity of the Kenyan people in equitable proportions.

Further to this, and when one recalls that the Constitution of Kenya 2010 is an affirmative constitution, the National Police Service Act, 2011 stipulates in its article 14 (b)" ....... that at all times one of the three positions of the Inspector-General and the two Deputy Inspector-Generals is of opposite gender."

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.